Michigan Court of Appeals just dropped abortion ruling that could have huge impact

A court order that sought to bar enforcement of a dormant law criminalizing most abortions in Michigan does not apply to county prosecutors, the Michigan Court of Appeals ruled Monday.

The ruling prompted a flurry of legal filings, culminating in an Oakland County judge issuing a temporary restraining order at the behest of Gov. Gretchen Whitmer that barred prosecutors from charging anyone under the 1931 state law that bans most abortions.

But before that ruling, advocates who oppose abortion rights stated the massively consequential Court of Appeals ruling meant the law banning all abortions except those done to protect the life of a pregnant person essentially takes effect immediately.

"We’re ecstatic. It’s wonderful. That’s exactly what we’ve been saying all along," said David Kallman, an attorney for Great Lakes Justice Center, a conservative organization representing several Michigan prosecutors who challenged the injunction.

More: Michigan judge won't step down from abortion case: Argument 'borders on frivolous'

More: Whitmer, Planned Parenthood lawsuits loom large in Michigan after high court overturns Roe

The Court of Appeals decision continues to make a sweeping and drastic impact in the state, where Whitmer, Attorney General Dana Nessel and many other pro-abortion rights advocates are fighting to maintain legal access to abortion following the U.S. Supreme Court's reversal of Roe v. Wade in June.

The ruling prompted confusion and concern about access to abortion in Michigan, but abortion-rights advocates will almost assuredly try to appeal to the Michigan Supreme Court as soon as possible.

In a statement Monday, Planned Parenthood of Michigan said its doors will remain open for abortions.

"I want to make one thing abundantly clear: Abortion is still safe and legal in Michigan today," said Paula Thornton Greear, president and CEO of the organization.

"We're committed to protecting abortion access in Michigan. We believe that the Court of Appeals order is wrong."

The organization argued court rules mean the order does not take effect for some time. Mark Brewer, an attorney for Planned Parenthood of Michigan, said the order does not take effect for 42 days, the length of time available for an appeal. Earlier on Monday, Planned Parenthood said that amount of time was 21 days, but Brewer said they now believe it's longer.

Kallman's organization said that's inaccurate, and the injunction is no longer in effect.  Brewer's arguments also do not mean necessarily mean prosecutors will wait to start bringing charges.

But if any prosecutors try to bring charges under the 1931 law, Brewer said his organization will ask a court to hold that person in contempt.

"While the injunction is in place, providing abortions in Michigan is legal," Brewer said.

That wrangling was largely rendered moot by Whitmer and her team, who late Monday Whitmer filed an emergency legal request asking a local judge to temporarily block prosecutors from enforcing the 1931 abortion ban.

The filing, tied to a separate abortion-related suit from Whitmer, argues blocking enforcement is necessary until courts decide lingering legal questions about the constitutionality of abortion in Michigan.

“Today’s dangerous decision by the Michigan Court of Appeals clears a path for county prosecutors to use Michigan’s extreme 1931 abortion ban to prosecute doctors and nurses and jail them for doing their jobs,” Whitmer said in a statement.

“That is why I have taken immediate action and filed a request for a temporary restraining order against enforcement. We cannot risk further confusion for women, health care providers, and all Michiganders. As today’s unexpected action proves, the overturn of Roe v Wade in June has left reproductive freedom hanging by a thread in Michigan."

Oakland County Judge Jacob James Cunningham agreed with Whitmer's argument, issuing the temporary restraining order late Monday.

Previously, Nessel said abortion rights in Michigan were hanging by a thread. In several tweets Monday, she said "the thread has torn."

"The Michigan Court of Appeals has just ruled that MI’s 83 county prosecutors can now begin enforcing the abortion ban. But note that the Dem prosecuting attorneys have committed to refuse to enforce the ban, and the injunction still applies to my department," Nessel said.

"Stay tuned for further developments on this. Appeals and additional motions on the pending cases are likely."

Nessel is referencing prosecutors in Wayne, Oakland, Washtenaw and other large Michigan counties home to abortion providers who have vowed not to enforce the 1931 law. But prosecutors in Kent, Jackson and Macomb counties — where there are also abortion providers — have indicated they would review possible criminal charges brought by local law enforcement.

The Michigan Court of Appeals' decision came as part of a broader request from county prosecutors for the higher court to take control over the case that barred enforcement of the 1931 ban.

Earlier this year, Planned Parenthood of Michigan sued Nessel, asking the Michigan Court of Claims to determine the state's abortion law is unconstitutional.

In April, Court of Claims Judge Elizabeth Gleicher issued a temporary injunction that sought to block enforcement of that law in the event the U.S. Supreme Court overturned Roe. When the high court did reverse the landmark abortion ruling, Gleicher's order was considered the only action preventing the 1931 law from going back into effect.

Prosecutors from Jackson and Kent counties then asked the Court of Appeals to weigh in, arguing in part that Gleicher had no jurisdiction over county prosecutors.

The Court of Appeals denied the request to take over the case, but in doing so gave these prosecutors the win they wanted, Kallman said.

"The Court of Appeals basically said (Gleicher) has no authority over county prosecutors, which is exactly what we were arguing," he said.

"This couldn't be more clear."

His clients do not plan to appeal. Kallman said as of a couple of weeks ago, he had not heard of any abortion-related possible criminal charges being brought in either Jackson or Kent counties.

More: Gov. Whitmer again asks court to take up abortion suit, citing shifting BHSH stance

More: Supreme Court overturns Roe v. Wade, leaving abortion questions for millions in Michigan

This ruling is separate and unrelated to a lawsuit filed by Whitmer against prosecutors in counties with abortion clinics. Whitmer's filing late Monday is connected to this lawsuit.

The governor and conservative lawyers are currently awaiting a decision from the Michigan Supreme Court on whether to take up that case.

Nessel, a staunch abortion-rights advocate, pledged not to spend any state resources defending the abortion ban. Once Gleicher decided Planned Parenthood had a substantial chance of winning its case and issued the injunction, Nessel quickly said she would not fight the ruling.

The Michigan Legislature and conservative attorneys quickly intervened in the case after Gleicher’s decision, arguing her ruling did not apply to local prosecutors.

They also argued the lawsuit was premature, noting no doctors face charges for allegedly providing an abortion in violation of the law. They also pointed to Gleicher’s admitted connections to Planned Parenthood.

Ultimately, the Michigan Supreme Court will likely decide the constitutionality of the 1931 abortion ban and whether there is a state constitutional right to an abortion. Irrespective of their decision though, there is an ongoing drive to change the state Constitution through a ballot proposal so that it expressly includes the right to an abortion.

The ballot proposal organizers filed more than 750,000 signatures, far exceeding the required amount. But the signatures still need to be reviewed and the Board of State Canvassers still needs to formally determine whether organizers met all requirements before the question can make it to voters this fall.

Contact Dave Boucher at dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.

This article originally appeared on Detroit Free Press: Court: Michigan abortion injunction doesn't apply to local prosecutors